United States v. Harris

• Decision Date: 08 October 1962
• Docket Number: Crim. No. 7977.
• Citation: 217 F. Supp. 86
• Parties: UNITED STATES of America v. Albert James HARRIS, Jr.
• Court: U.S. District Court — Middle District of Georgia

217 F. Supp. 86

UNITED STATES of America v. Albert James HARRIS, Jr.

Crim. No. 7977.

United States District Court M. D. Georgia, Macon Division.

October 8, 1962.

Floyd M. Buford, U. S. Atty., Macon, Ga., for plaintiff.

C. Cloud Morgan, T. Reese Watkins, Macon, Ga., for defendant.

BOOTLE, Chief Judge.

The motion to dismiss raises the question whether the indictment states facts sufficient to constitute an offense under one of the alternatives of 18 U.S.C. § 1001. Stripped of language not pertinent to the present question, the statute reads: "Whoever * * * 1 conceals or covers up 2 by any trick, scheme, or device 3 a material fact * * *." The numerals just used emphasize three essential ingredients of the offense sought to be charged.

Similarly stripped, the indictment charges "* * * the defendant did * * * 1 conceal and cover up 2 by trick, scheme and device * * * 3 a material fact in the following manner, to wit; * * * the defendant furnished and delivered * * * forty-four (44) rolls of paper, specification MIL-B-13239B, under a contract, * * * that called for furnishing and delivering forty-four (44) rolls of paper, specification MIL-I-3420A, and the defendant well knew that the said paper furnished and delivered did not comply with the required specification and the defendant wilfully and knowingly committed the said fraud; all in violation of 18 U.S.C. 1001."

The indictment recognizes the existence of the three specified essential ingredients of the offense by copying them verbatim from the statute. This incorporation of statutory language in the indictment is, without more, only a legal conclusion of the pleader. The draftsman of the indictment doubtless so recognized because, after setting forth the statutory language, he continues, "in the following manner, to wit;", obviously essaying to do what Rule 7(c), Federal Rules of Criminal Procedure requires, namely, set forth a "written statement of the essential facts constituting the offense charged." The indictment probably sufficiently sets forth the "material fact" by alleging that the defendant delivered paper different than that ordered, knowing that the paper delivered did not comply with the required specifications, this allegation as to the "material fact" probably being sufficient in view of the fact that the statute does not limit itself to monetary claims against the Government, Spivey v. United States, 109 F.2d 181 (5th Cir.1940), or to cases involving pecuniary or property loss to the Government, United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598, 603 (1941). But we look in vain to the indictment for any "statement of essential facts" showing (1) any concealment or covering up, or (2) any trick, scheme, or device. That a setting forth, or spelling out, of these two essential ingredients of the offense is necessary was held in United States v. White, 69 F. Supp. 562 (S.D.Cal.1946), construing this very language of the statute, and is plainly indicated in United States v. Apex Distributing Company, 148 F.Supp. 365 (D. Rhode Island, 1957), construing alternative language of that statute. The White case held valid the second count of an indictment which specifically spelled out what the material fact was and what the trick, scheme, or device was. It also held invalid Count One, a conspiracy count, because "Nothing is was said in the indictment as to what `material fact' they conspired to conceal; nor is anything said as to what the `trick, scheme or device' was and was to be; * * *." We need not go so far as to approve the holding of...